TSCA PFAS reporting- implications of EPA’s new statutory interpretation on articles

November 24, 2025

Read the full article by Lynn L. Bergeson, Richard E. Engler, and Ryan N. Schmit (JD SURPA)

"Headlines regarding the U.S. Environmental Protection Agency’s (EPA) most recent proposed update to the one-time per- and polyfluoroalkyl substances (PFAS) reporting rule under Toxic Substances Control Act (TSCA) Section 8(a)(7) have been dominated by the rule’s new exemptions and the significant narrowing of responsibility and burden that industry stakeholders will face if the rule becomes final. But, buried in the preambular text — Unit III.A.2 to be precise — are a few paragraphs that caught our attention: a proposed interpretation that EPA lacks statutory authority to require reporting by those who import PFAS in articles.

EPA now states that the law is “best read as excluding articles and targeting the reporting requirement to manufacturers of the PFAS themselves.” EPA rationalizes that Congress “could have said so” if it desired the reporting requirements to extend to those who import articles containing PFAS. In EPA’s words: “[w]here Congress omits expansive modifiers, they should not be inferred.” It is worth mentioning that the argument itself is not new; EPA received some public comment to this effect on the original 2021 proposed rule. In the 2023 final rule and response to comments document, EPA disagreed and defended its authority, citing the decades-long interpretation that “manufacture of a chemical substance” under TSCA includes import of an article containing the chemical substance.

More than five years of regulatory development activity have transpired since Congress enacted the 2020 National Defense Authorization Act (NDAA) that added TSCA Section 8(a)(7) and directed EPA to undertake rulemaking to collect more information on PFAS. EPA’s estimated burdens with respect to articles importers in the 2021 proposed rule drew significant criticism, prompting EPA to convene a Small Business Advocacy Review (SBAR) panel in 2022, update its economic analysis to inform the 2023 final rule, and develop numerous guidance materials to assist articles importers with compliance responsibilities. Stakeholders were correct to note that EPA has excluded articles from various other regulatory contexts, including chemical data reporting (CDR) under TSCA Section 8(a) and premanufacture notice review of new chemicals. When EPA Administrator Zeldin announced in 2025 that EPA would implement the TSCA PFAS reporting requirements “smartly” and “without overburdening small businesses and article importers,” many in the TSCA community expected some regulatory relief. The proposed rule, however, takes it even one step further. "